November 15, 2011

The "constitutionality" of the Obama health care law, Harvard Law School's Laurence Tribe wrote in the New York Times earlier this year, "is open and shut," adding that the challenge against it is "a political objection in legal garb."

In announcing yesterday that it will consider the law's constitutionality, the Supreme Court said it would give an historic five-and-a-half hours to oral arguments. Perhaps by his Cambridge standard, Mr. Tribe thinks the nine Justices are a little slow. We prefer to think this shows the Court recognizes the seriousness of the constitutional issues involved. It makes those who cavalierly dismissed the very idea of a challenge two years ago look, well, constitutionally challenged.

The argument for upholding the law rests on a facile application of an existing line of precedent: Look quickly and see that this case is another one of those cases and stamp the law constitutional. Characterizing the case as easy is thus part of arguing for upholding the law. That's what Tribe and others have been doing. Many of the lower court cases have, unsurprisingly, taken that route.

The Supreme Court, which controls the precedents, has to choose between that easy course and drawing a line. If it draws that line and takes down the individual mandate — and perhaps the entire health care reform — it will need to inspire our belief in the truly judicial nature of its exertion of power. To set 5 1/2 hours of oral argument is to command a dramatic performance in the Theater of Law. That will help us see the result as the product of genuine legal process.

Now, our belief in the truly judicial nature of its exertion of power is important whether the Court strikes down the law or not. All that has happened so far is that the Court has rejected the presentation of the case as easy. That doesn't mean the Justices are not perceiving the case as easy. It only means they don't want you to see it that way.

That will help us see the result of the product of genuine legal process.

In light of the new "crossed fingers and toes", "amazing!" emails re Kegan, how genuine with the legal process be viewed by half the country if she does what I (as a layman) perceive to be the correct course and recuses herself? How will it be viewed by the other half if she doesn't?

It used to be that there was a Phil. 101 question about grue, meaning blue before Jan 1, 2000 and green thereafter. The question was whether there was more evidence that the sky was blue than there was that the sky was grue.

This is aside from grue being French slang for hooker.

Maybe legal precedents are to be taken as grue. It would be consistent with judicial history.

Prof. A wrote, "All that has happened so far is that the Court has rejected the presentation of the case as easy. That doesn't mean the Justices are not perceiving the case as easy. It only means they don't want you to see it that way."

I'd submit:

They don't want you seeing them as seeing it that way.

And I don't believe they see it that way, not even the liberal bloc. Even Kagan's mental processes will mimic those of a fair, disinterested justice — despite the fact that her vote was effectively predetermined long before she was appointed to the bench, and almost certainly before there was an Obama Administration for her to be part of.

Madison wanted to elevate the level of decision making away from the dirt farmers down on the farms of Alabama and North Carolina toward the federal branch. So the court system was established as a method to prevent democracy from actually ratifying the decisions of the hoi polloi. The patricians of the court's sanctity suffered badly when the Bush-Gore decision fell on a strictly partisan basis into a 5-4 alignment. The scales fell from all our eyes, and the partisan blindness of the court became nakedly apparent. In short, they will render a decision and cloak it in high-minded abstractions, but in brief they're either for Obama or against him on a strictly partisan basis, just like the rest of us. They're either for socialism or for capitalism, just like the rest of us. We have two warrior activists on the court appointed by Obama who will never see anything differently and whose minds are about as closed as as as (I can't think of anything that is that closed).

The Supreme Court correctly perceives this as a case that has an extraordinary potential to affect public opinion about the power and legitimacy of our federal government. Besides setting an important boundary on Congressional power (or declaring that there is none), this case has an extraordinary potential to affect the public's perceptions of the legitimacy of the Supreme Court itself. That's indeed what it has in common with Bush v. Gore.

I really don't think the expanded argument portends anything about the likely result. I'm quite confident that the justices in the liberal bloc were as pleased to agree to the proposal as any justice who tend to vote more conservatively. I suspect Mr. Justice Thomas may have been the only skeptic based on his general low regard for the utility of oral argument, but I'd be surprised if he voiced even any private reluctance to expand these arguments.

Under any scenario of potential outcomes — and there are a great many potential permutations! — there is still no constituency, in other words, for the proposition that the SCOTUS ought to be perceived to have given this case only a superficial review.

I went back and read Tribe's earlier NYT article. Gotta love liberal logic. First we're told that Obamacare is necessary b/c millions upon millions of uninsured people aren't getting proper medical care. Now it turns out that we really need it b/c the uninsured scam the rest of us by consuming a lot of medical care.

No wonder the SC thinks this will take a long time to argue. The feds will need at least 4 hours to get their story straight.

My one hope is for a concurring or dissenting opinion from Thomas (can't imagine him being assigned the main opinion) on why the whole existing line of commerce law precedents is wrongly decided and should be overturned. In a sense, Tribe is right. The whole thrust of these precedents is that the commerce clause is a blank check - a license for congress to control our lives in any way it sees fit. Overturn them all!

If the DOJ refuses to release the Kagan emails requested by Congress from when she was Solicitor General I'm not sure that any result could be seen as a genuine product of the legal process. If she was part of crafting a legal defense (or part in crafting the law) she should recuse herself. If there's nothing more than her just expressing an opinion of happiness on its passage she should remain on the bench for this, she's a judge, not a robot. But, so long as the DOJ refuses to reply with Congress's request there will be a cloud of ethical uncertainty looming over her.

What was interesting to me was that the 5 1/2 hours was split up among a bunch of different issues - a half an hour for this issue, an hour for that issue, etc.

Which is to say that the Supreme Court appears to be taking this very seriously, and isn't about to let one issue swamp the others in oral arguments.

That said, I don't expect to see either Justice Kagan or Thomas recuse themselves. Kagan because she is a lib, and thus, results are more important than how you get there, and Thomas because hitting him through his wife is a slimy low blow. And, this is just the sort of case where the left is most petrified of a Thomas opinion, or even dissent.

Oh, and to clarify: No, I don't have any high expectations that The Nine will get it right, any more than their predecessors did in Dred Scott et al...

I think that this depends on how it all turns out. For me, if they overturn part or all of the law, I will consider that they got it right. You may prefer a different outcome.

What is a bit worrisome is that the Court seems to be taking some of the procedural and jurisdictional issues as seriously as they do the merits. They could, theoretically, flush the case on standing, etc., grounds.

If this is found constitutional, under what legal argument would it be unconstitutional for the federal government to requirewomen to have abortions under certain circumstances (for example when they are carrying con-joined twins)?

Kagan said during her confirmation that she DID in fact believe that Congress had the power to force everyone to eat broccoli. And she was still confirmed. THAT should have prompted a borking, in my opinin, as she was obviously unfit for the SCOTUS.

But on the surface, I don't see the difference between arguing, "People who don't have health care insurance impose costs on the rest of us, therefore the government can require them to have health care insurance," and saying "Women who give live birth to conjoined twins impose costs (Millions of dollars) on the rest of us, therefore the government can require them to not give live birth to conjoined twins."

AJ Lynch and Original Mike said: "I bet Prof. Tribe also believes the feds could force us to eat our peas."

I'd bet he does. I'd also bet he wouldn't admit it.

I caught an article on Above the Law where the writer had watched Tribe debate the bill. His charactorization to this hypo was, basically: "but the gov't's not making us eat healthy in this case. And if they did, well, that'd probably fall under substantive due process."

Oy. I read Tribe's "Invisible Constitution" a few years ago, and basically every arguement went "Well, this must be right/wrong, so it must be/not be constitutional." I read it excited that maybe I would get some reasoned analysis of points that I generally disagree with, but instead got some of the laziest thinking this side of the tail end of a 400 comment thread after Ritmo and Allie have started telling us how much they want to screw each other.

But on the surface, I don't see the difference between arguing, "People who don't have health care insurance impose costs on the rest of us, therefore the government can require them to have health care insurance,"...

The problem with that sort of argument is that it is a communitarian argument. Yes, people, in gross, who don't have health care insurance may indeed cost the rest of us money. BUT, not everyone who does not carry health care insurance at any given time will cost society money. And, indeed, there are people who go through life not using either the health care system or (formalized) health care. And, those people who are not carrying health care insurance but aren't (and may never) cost the rest of us money, are being forced to carry health care insurance anyway. All because they belong to a group that is broadly enough defined to include them with those who do cost us money.

If this is found constitutional, then would arranging marriages based upon genetics be constitutional? Minimizing the likelihood of significant birth defects would certainly sound constitutional under this arrangement.

Or, as in my case, denying the right to reproduce at all because of my age. Government-mandated vasectomy for you, my man. And, btw, you pay for it yourself.

Lovely Lyssa has it exactly right. Tribe's theory of constitutional interpretation amounts the this: "If I like the outcome, why of course it's constitutional. Nothing more needs to be said."

I once saw him arguing a case before the Court that had to do with easements across Indian land. Tribe was off on some theory of Indian sovereignty when one of the Justices asked him something about the common law of easements. Tribe didn't have a clue. It almost seemed that he didn't even have a basic understanding of what an easement is. After a short Professor Irwin Corey kind of answer, he quickly returned to his theory of sovereignty. His argument, taken as a whole, was a great tribute to Professor Corey.

You must be new around here--and a hearty welcome, if you are! Everyone else has already half died of boredom as they skip over my rants detailing my utter contempt for the complete intellectual travesty that is current Commerce-Clause jurisprudence.

And FTR I did mean "good question" in all seriousness-just how would any of our current statist enthusiasts distinguish your hypothetical case from this current one?

Five and a half of oral arguments still, IMO, does not address the question of why the SCOTUS is involved in this at this point. The old saw in political science was that the SCOTUS reads the election returns. Lets have the election of 2012 see what the country thinks--or at least a majority of the country.

Beldar, as usual, makes an excellent point--when SCOTUS takes up what are probably political considerations, they diminish their respect.

Bush v Gore? probably necessary because some outcome was absolutely necessary. AMA? much less so.

I think SCOTUS has stepped in in big time--and if Mr Obama is reelected, whichever Justices show up for the state of the union in 2013 can expect to be excoriated by jug ears should they strike down the whole AMA or parts of it.

Five and a half hours? The individual mandate doesn't deserve five and a half minutes. As Molly and others have pointed out, if the Commerce Clause is found to support this, there is literally nothing that congress may not impose.

They are both a disgrace. Thomas, at least, should be impeached for having systematically concealed his wife's income from a major conservative think thank (with business before the court) in addition to accepting lavish gifts from political operatives.

BTW--I asked this procedural question on Volokh: We know the US solicitor general will represent the defendants; but when 26 states comprise the plaintiffs what is the process that determines who represents them? Clearly all 26 AGs are not going to arguing for the plaintiffs? Several commenters on Volokh suggested it would be Mr Dellinger, a former SG.

To my knowledge she didn't accept any gifts. However, she was solicitor-general, I believe, at the time Obamacare was passed.

Further, since you're a fan of copy/paste,

Re: 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

I realize your sensibilities reel at the mention of "he" in regards to Kagan, but try and look past that. I have no doubt eight of the justices already know which way they're going to vote. What's hysterical is that you think all of the corruption is on the right without noticing the advocacy on the left.

Clearly all 26 AGs are not going to arguing for the plaintiffs? Several commenters on Volokh suggested it would be Mr Dellinger, a former SG.

I don't think that it is a formal process, per se, but rather, they had agreed beforehand to utilize joint counsel. There may have been a vote on who to hire to represent them before the Supreme Court. But, again, it is entirely internal to the group, and likely somewhat informal.

What gifts did Kagan accept? What income did she hide, as did Clarence Thomas."

Kagan, as Solicitor General was involved in framing Obamacare as a Constitutional extention of the Commerce Clause w/in the Usurper White House. Of course she should recuse, since that means there is not even a pretence of objectivity.Of course in the typical left wing mind everything is a relativist argument, but what "gifts" did Thomas receive?

@Molly: "If this is found constitutional, under what legal argument would it be unconstitutional for the federal government to require women to have abortions under certain circumstances (for example when they are carrying con-joined twins)?"

Such a law would be unconstitutional as violative of due process and equal protection clauses of the 14th amendment because the law would burden a fundamental right (the fundamental right to privacy, generally, and the fundamental right to procreation in particular), but would fail to serve a compelling government purpose. Even if such a law did serve such compelling purpose, it would not be narrowly tailored to that purpose.

Your hypothetical law is also distinguishable from the ACA in that it would never pass.

AL: Typical Left Media complaint, and an annual one, about The Federalist Society's annual dinner. I'm sure Justices Kagan and Sotomayor attend ACLU events, which is the same thing on the "other side", but no one ever says a peep.

Yep. The people who advance that argument always start from the premise that the government is paying people's health costs. Of course, that's because the government requires everyone to accept "their" money.

"The day the Supreme Court gathered behind closed doors to consider the politically divisive question of whether it would hear a challenge to President Obama’s healthcare law, two of its justices, Antonin Scalia and Clarence Thomas, were feted at a dinner sponsored by the law firm that will argue the case before the high court."

A last observation, speaking as someone who clerked on the Fifth Circuit and who's since argued in it and other federal appellate courts about a dozen times:

Not very many cases are won at oral argument. But a non-insignificant number are lost there, typically when a very well-prepared judge asks a question which elicits an ill-considered or -articulated concession. (Sometimes it also happens when the answer is just ridiculously stupid and outrageous. But the beauty from extracting an oral-argument concession is that it then becomes the foundation for a line in the written opinion which begins, "As counsel for the respondent conceded at oral argument, _____."

Good appellate judges understand this dynamic and indeed, some of them plan for it in advance. I think here it works in favor, mostly, of those challenging Obamacare's legitimacy. And the expanded argument time simply gives more opportunities to try to extract such concessions.

The author presents us with a false choice: the Supreme Court will either base their decision on precedent or partisanship. However, there is actually a third choice. They might, just might, base their decision about the constitutionality of the law based on the Constitution. ( I know, crazy idea. )

They might look at the Constitution, look at the law, and look at the precedent, and conclude that if the precedent says this law is constitutional then the precedent is incorrect.

This case will be a clash between two radically different views of how the Constitution should be interpreted. The Constitution is "an evolving document" theory vs. the "original understanding" theory.

I hope one of the questions asked by a Justice will be "how do we determine in what direction the constitution is evolving".

For folks like Love, the answer is simple: just ask Professor Chemerinsky, he knows.

Love, if you think you know my answer to any question, then you don't know me. Which you don't. Go back and read the article you quoted. They are attending the Federalist Society dinner. Among its two dozen sponsors is the law firm representing the challenger.

So what? They can't attend a mainstream function because a small part of the bill was paid by someone only one step removed from someone with a horse in this race?

In any case, I would come close to betting my life that eight of the nine have already decided how they are going to vote. The fact that Alpha and Jeremy's ilk think the fix is only in on the right is as laughable as it is disingenuous.

Too bad Clarence Thomas, even with more than five hours to raise a question, probably won't.

If the supreme court "gets it wrong" ... it will look like KELO.

When Souter left he made more people happy than when he got selected. And, the only reason he got selected is that he never commented about abortion. And, he also didn't tell anyone he was a homo.

Gone now.

So is Sandra Day O'Connor.

My guess is that the Supreme's will confirm that the US Constitution has a "commerce clause." It should start with the words "Caveat Emptor." Because in good old English Law it came down heavy on the buyer. Who sued because his horse died under the load. And, the seller had lied about the weight.

The US Constitution also provides the government with the ability to tax.

Then, when it comes to health care ... I think the Supremes will draw lines around FORCING people to buy. And, letting the rules stand that IF you buy crap ... you, the investor, made mistakes. Took risks. And, lost.

Health Care is NOT a bomb shelter.

The president did something by allowing Pelosi to do her "schtick" ... that can end the careers of democrapic politicians.

I agree it's hard to imagine such a law being passed, but I am not totally reassured by that.

Your legal explanation was exactly what I was looking for. But isn't regulation of interstate commerce a compelling state interest? And (if it is a compelling state interest) how could a "remedy" be more narrowly tailored?

And Mike's comment (1:46 p.m.) hits on what bothers me: the government forcing a person to buy something.

We should distinguish between two kinds of challenges. One kind of challenge is that Congress has no source of authority to pass a law, and since Congress may only pass laws that the Constitution empowers it to pass, if it lacks a source of authority, a law is void. This is the type of challenge at issue in this case. Congress purported to have power under the Commerce Clause to pass the ACA. The challengers to the ACA say that the Commerce Clause does not extend far enough to authorize Congress to pass the ACA, and therefore, the law is void.

The other type of challenges are of this sort: that even though Congress has a source of authority, another provision of the Constitution -- for instance, the 14th Amendment -- prohibits the existence of the law. This is the kind of challenge that would be made to your hypothetical law.

Here's what I think about the other questions you posed:

"Regulating interstate commerce" is probably not a compelling state interest. Usually the government would need to defend a law by pointing to some specific ill or goal, backed by some findings of fact. Regulation is not a goal in and of itself.

Any law that burdens a fundamental right must pass this strict scrutiny (being narrowly tailored to serve a compelling gov't interest)).

To show that a remedy is narrowly tailored, the state would need to show that the remedy is not overbroad (e.g. that it doesn't infringe upon individuals in a manner that doesn't actually further the compelling interest) and that there are no other alternatives that are less burdensome on the fundamental right in question.

It's a very high standard. Very few laws will pass strict scrutiny once they are found to be burdening a fundamental right.